Nyakebere (Migration)

[2023] AATA 4110

Nyakebere (Migration) [2023] AATA 4110 (27 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Stephen Oganda Nyakebere

CASE NUMBER:  2316132

HOME AFFAIRS REFERENCE(S):          BCC20234918486

MEMBER:Nora Lamont

DATE:27 November 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 27 November 2023 at 2:00pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not made in accordance with relevant legislation – applicant not in migration zone when application made – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 338(2), 347(2)(a), (3)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged for review of a decision of a delegate of the Minister for Home Affairs, dated 3 October 2023, to refuse to grant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act). This decision is reviewable under s 338(2) of the Act.

2. The review application was lodged with the Tribunal on 8 October 2023. For the following reasons, the Tribunal has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

3. Section 347(2) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. In the case of a decision described in s 338(2), an application for review may only be made by the non-citizen who is the subject of the decision and is physically present in the migration zone when the application for review is made: s 347(2)(a) and (3). ‘Migration zone’ is defined in s 5(1) of the Act and generally speaking means the Australian States and Territories.

4. The Tribunal finds that the applicant was not in the migration zone at the relevant time. As such, the application for review is not an application properly made under s 347 and it follows that the Tribunal does not have jurisdiction in this matter.

   DECISION

5. The Tribunal does not have jurisdiction in this matter.

   Nora Lamont
   Member